Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part II

In my last post, I focused on the potential civil rights issues arising from the account given by Joe Scarborough and Mika Brzezinski concerning their allegation that the President, through his staff, asked them to apologize for negative coverage and make their coverage more positive in exchange for the President using his authority to stop publication of a potentially damaging story about them in the National Enquirer.  Again, there appears to be more to this story, the President denies Joe’s account, and it is unclear as yet whose version is correct.  My previous post discussed the federal statutes that make it a crime to willfully deprive a person of his rights, 18 U.S.C. 242, and to conspire to injure, oppress, threaten, or intimidate a person in the exercise of a constitutional right, or because of his exercise of a constitutional right.  18 U.S.C. 241.  But because there has been some commentary on the potential extortion and reputational blackmail aspects of this story, I will now focus on those.

First, let’s begin with the statutes that proscribe extortion.  The Hobbs Act, 18 U.S.C. 1951, does so, but I think the Hobbs Act is problematic here.  This law makes it a crime to obstruct, delay, or affect commerce by extortion.  It further defines “extortion” in section 1951(b)(2) as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

The problem is that, in this case, even assuming the truth of Joe’s account, there was likely no effort to obtain “property.”  Although intangible things can be “property,” the Supreme Court held in Sekhar v. United States that “property,” for purposes of Hobbs Act extortion, must be capable of transfer from one person to another.  It must be obtainable.  The Sekhar Court also distinguished between extortion and coercion, which, the Court said, is threatening another person to do or abstain from doing something that he or she has a legal right to do or abstain from doing.  Coercion, then, need not involve transferable, obtainable property; Hobbs Act extortion does.  And the Hobbs Act does not cover mere coercion.

The other statutes that might seem directly relevant here are those in the statutory scheme involving interstate communications, 18 U.S.C. 875.  In particular, consider subsections (b) and (d), both of which forbid threatening interstate communications made with the “intent to extort.”  They also require that the threats be to “injure the person of another” (as in (b)) or to “injure the property or reputation of the addressee” (as in (d)).  If Joe’s account is true, then if the President was threatening to greenlight a story that would cause reputational or financial jury to Joe and Mika, this would seem to fit the injury element, even though it is not physical injury as required by subsection (b) (that is, if we can say that “injury to the person” also includes reputational or financial injury; of course, this could also mean physical injury only).

Here the problem is that the mens rea element requires an “intent to extort . . . money or other thing of value.”  Even in Joe’s account, the President did not seek money.  The question, then, would be whether the President’s alleged effort to extract an apology, and thereby change the substantive content of Morning Joe’s coverage, would constitute extorting a “thing of value.”  One might argue that a political commentary show’s substantive coverage of the President is a “thing of value” because it is the show’s content that attracts viewers and advertisers, revenue and ratings.   Perhaps, it could be argued, Morning Joe’s viability would be affected if it changed the way it covered the President.  But this would seem to be a contested issue in a case under either section 875(b) or section 875(d).  And if Sekhar’s understanding of extortion in the Hobbs Act context also applies to the extortion provisions of section 875, then it would not be enough to simply show that there was merely intent to coerce.

A somewhat more viable statute in the section 875 scheme could be subsection (c), which also forbids interstate communications that threaten to injure the person of another, but does not require any intent to extort.  Thus, we can avoid the extortion/coercion problem that Sekhar acknowledged, as well as the tricky issues involving money and what a “thing of value” is.   The Supreme Court held in Elonis v. United States that section 875(c) requires that the actor send a communication with the purpose of making a threat, or with knowledge that the communication will be viewed as a threat.  Mere negligence will not suffice, but the Court did not address recklessness (Justice Alito’s separate opinion would have allowed a conviction based on recklessness — “conscious[ly] disregard[ing] the risk that the communication will be viewed as a true threat”).  Again, if a threat to injure reputation or to cause financial harm satisfies the “injury to the person of another” element, then this would seem to be a better fit than the more complicated extortion statutes.

In short, those who say this alleged incident might not fit the legal standards for extortion or reputational blackmail may well be right.  I am not sure, however, that failure to satisfy extortion or reputational blackmail is, or should be, the end of the matter.  Again, if the First Amendment protects Joe and Mika from a threat of the kind alleged, then sections 241 and 242 are potentially implicated, and section 875(c) is worth a closer look.  But even if, as is certainly possible, Joe’s allegations would be insufficient to support application of the criminal statutes I have mentioned, there remains the question of whether — if the facts are as Joe alleges them — this amounts to a serious abuse of power, one that implicates the First Amendment rights of the media and that deserves greater scrutiny by Congress, the institution charged with investigating presidential abuses.

Questioning the media, even in a combative tone, is one thing, and hardly new for presidents.  But if a president seeks to do harm to individual members of the media merely because the president dislikes the content of, and viewpoint expressed in, the media’s coverage of him, that is quite another thing entirely.  And constitutionalists should stand firm against such an authoritarian posture, whether criminal or not.

Extortion, deprivation of rights, and the myth of the Twitter counter-punch: Part I

I rarely comment on the President’s tweets, unless they implicate a legal or constitutional issue of relevance.  And I am confident that everything has been said already about the President’s repugnant tweets concerning Mika Brzezinski and Joe Scarborough.  There is a follow-up issue on which I prefer to focus, but I will add only these thoughts on the tweet itself.

First, using a Twitter account to insult people is a rather pathetic form of “counter-punching,” and probably should not count as such.  In this context, “counter-punching” would be appearing in person on Morning Joe and saying to Joe and Mika’s faces exactly what the President said via Twitter.  Second, even if it is “counter-punching,” our civil society — and notably our criminal law — has always taken an unkind view of certain disproportionate forms of “counter-punching.”  If someone pushes me on the subway, or insults me on the street, or slaps me in the face, I do not have the right to shoot him in the forehead with a rifle.  Proportionality matters.

That said, another issue arose yesterday during Morning Joe that has received some attention.  During yesterday’s broadcast, Joe and Mika described a story in which, according to them, the President — through one or more of his staff at the White House — threatened to permit the publication of a story in the National Enquirer about Joe and Mika’s personal life together if they refused to call the President and apologize for their negative commentary on him.  If they called and apologized, Joe’s account goes, the President would use his influence and connections with the Enquirer to kill the Enquirer story.  The President denies the account as it was told on the show, but Joe claims to have documentary evidence to prove the version he told.

Several commentators have explored whether this amounts to criminal extortion or reputational blackmail.  I want to add just a bit more to the criminal law angle, but I will reserve a discussion of the extortion statutes for a separate post.  Instead, I will focus this post on the potential deprivation of constitutional rights and conspiracy to do so, both of which are serious federal crimes.

For purposes of this legal discussion, I will assume the accuracy of Joe’s description of the events, though we still do not know for certain what exactly happened and it is possible that Joe’s account leaves out salient details that could affect the legal analysis here.  I also interpret his account as not simply an effort by the President to seek an apology, but also to induce Joe and Mika to stop making negative comments about the President and to cover the President in a positive light (otherwise, what’s the point?).  So based on this, here are the legal issues that I think could be relevant that concern the potential criminal deprivation of civil rights.

If Joe’s account is accurate, then it is possible that the President has endeavored to coerce the media into doing something with its coverage, or refraining from doing something with its coverage, by threatening reputational or financial harm to television hosts based on the content of their speech (or, worse still, the viewpoint expressed).  If so, this has very serious First Amendment implications, and raises the question of whether the President has willfully deprived Joe and Mika of their First Amendment — and perhaps equal protection — rights under color of law, in violation of 18 U.S.C. 242.

As always, in any section 242 case, there is the question of what “willfully” means.  The Supreme Court said in Screws v. United States that this includes “open defiance or reckless disregard of a constitutional requirement which has been made specific and definite.”  There may also be some question as to whether the President was acting “under color of law,” if he was relying simply on his private relationship with the Enquirer rather than on any official power as President.  But there is case law holding that an official acts “under color of law” when he uses the victim’s fear of his power as a public official to induce the victim to do something or refrain from doing something.  See United States v. Giordano, 442 F.3d 30 (2nd. Cir. 2006).

And that connection is strengthened if the President used White House staff to communicate his threats.  Indeed, if Joe’s account is accurate, then the use of White House staff would seem to implicate 18 U.S.C. 241, which says that it is a crime for “two or more persons to conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.”  The conspiracy problem is worse still if the President formed an agreement with the folks at the Enquirer in this regard, though the Enquirer denies any contact with the White House on this specific matter.  The conspiracy against rights statute does not require color of law, nor does it require an overt act in furtherance of the agreement.  Criminal liability attaches the moment that the agreement is formed.

Of course, presidents and other politicians often use their position to influence media coverage (granting special access, etc.).  Doing so is not typically thought to implicate the First Amendment.  The question here is whether, assuming the veracity of Joe’s account, there is something different — and constitutionally pernicious — about coercing a change in viewpoint by threatening to allow publication of potentially damaging information about a media figure’s personal life.  The act-omission distinction might also be important here under section 242 (if the allegation is simply that the President failed to do something), although the theory could be that the threat itself constitutes the deprivation.

All of this is subject to the usual caveats that, first, it is not clear that the President violated a criminal law; and second, even if he committed a criminal offense, he likely would not be prosecuted while in office.  Still, as I have said before, this would not immunize him from a congressional investigation or impeachment.  Some may think that further discussion of this story makes a mountain out of a molehill.  But if Joe’s account is true — if the President used his office, and those in his charge, to communicate to prominent cable news hosts that he would greenlight, or at least not intervene to stop, a potentially damaging story about their personal lives as a way of coercing them into apologizing for negative content and giving him more positive coverage — then it is hard to imagine how this would not constitute a serious abuse of power and a threat to the First Amendment of the Constitution.  And it is surely worthy of a congressional inquiry.